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Judge rules DNR can test for PFAS, but it can’t take legal action without standards

Jefferson County judge grants partial victory to state’s largest business group

treated wastewater
An Orange County Water District worker draws a sample of water produced by the groundwater replenishment system, which purifies treated wastewater for release into the groundwater basin in Fountain Valley, Calif., on Friday, June 26, 2015. Amy Taxin/AP Photo

The Wisconsin Department of Natural Resources can test wastewater for so-called forever chemicals known as PFAS, but a Jefferson County judge ruled Monday that the agency can’t pursue enforcement until water quality standards are in place.

Jefferson County Judge William Hue issued the 45-page written decision that sided in part with Wisconsin Manufacturers and Commerce.

The state’s largest business lobby sued the Wisconsin DNR in March last year, claiming the agency unlawfully sought to sample wastewater released from industrial and municipal facilities. The business group argued the agency lacked explicit authority to conduct testing at facilities that operate under wastewater discharge permits.

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Hue ruled that the DNR does have authority to enter permitted facilities and test them for PFAS under Wisconsin law and the Clean Water Act.

“(I)n the absence of state law authorization, the DNR may not enforce, through Wisconsin Courts, nonexistent Wisconsin state standards related to toxic substances unless and until identified and quantified through rulemaking as required by Wisconsin law,” Hue wrote in his decision.

A DNR spokesperson said the agency’s legal team is reviewing the ruling and declined to comment at this time. Representatives with WMC did not immediately respond to a request for comment.

The DNR conducted wastewater sampling at 116 facilities as part of developing a draft economic impact analysis of costs tied to ongoing work to craft surface water quality standards for PFAS. The agency wanted to know whether the chemicals were present to estimate what it would cost for facilities to address them under its proposed limits.

The agency is proposing surface water standards of 8 parts per trillion for PFOS and 20 parts per trillion for PFOA to protect public health and the environment. The DNR estimates it will cost around $2.1 million for 48 businesses if the limits are put in place.

WMC had asked the court to prevent further sampling as part of the agency’s work and bar public release of those results. Last year, the court temporarily halted the DNR’s testing of facilities for PFAS and prevented the release of its findings.

The court later found the agency could continue sampling, but it’s still prohibited from publicly disclosing results tied to specific facilities. WMC argued releasing sampling data could harm the reputation of those facilities.

The judge also ruled the agency wasn’t authorized under state law to compel facilities to submit to PFAS sampling to prepare the economic assessment, but Hue said any information obtained could be subject to a records request.

Attorney Vanessa Wishart, a partner with Stafford Rosenbaum that represents the Municipal Environmental Group’s Wastewater Division, said the division didn’t dispute the DNR’s authority to collect samples on behalf of their roughly 100 members.

“Our members aren’t sources of PFAS,” said Wishart. “To the extent we can, we are engaged in trying to better understand how those compounds can get into the waste stream alongside the department.”

Municipal Environmental Group’s Wastewater Division has advocated for non-numeric standards for PFAS and has argued that treatment systems required to meet strict standards for limiting the chemicals in wastewater are “neither economically feasible nor environmentally sound.”

The case is one of two that WMC has brought against the DNR, challenging the agency’s authority to regulate PFAS. WMC also sued the DNR over its authority to require businesses to clean up PFAS contamination. The business group has asked a court to bar the DNR from regulating emerging contaminants like PFAS unless they go through the state’s rulemaking process. A Waukesha County judge is expected to issue a ruling in that case in April.

Perfluoroalkyl and polyfluoroalkyl substances, commonly called PFAS, are manmade chemicals found in firefighting foam and everyday products, and they don’t break down easily in the environment. The chemicals have raised concerns because they’ve been linked to health problems, including cancer, thyroid disease and reproductive issues.

The DNR has been crafting standards for surface water, groundwater and drinking water for PFAS. The agency’s proposed standards are expected to go before the Wisconsin Natural Resources Board next month. The limits also require approval from the Republican-controlled Legislature, which has weakened or eliminated Evers administration proposals that seek to address the chemicals.

The agency is proposing a combined drinking water standard of 20 parts per trillion for two of the most widely studied chemicals: PFOA and PFOS. The recommendation is in line with state health officials’ recommendation to protect public health.

The Environmental Protection Agency has set an unenforceable federal health advisory level of 70 parts per trillion. In October, the agency announced a broad plan to address the chemicals that includes setting federal drinking water standards in the next two years.

WMC along with municipal and water groups have urged the state to wait for federal standards to regulate PFAS. However, the DNR contends that even after federal regulations are in place that it may be years before those standards take effect in the state.

The DNR is investigating PFAS contamination at more than 90 sites statewide, including in Marinette, Eau Claire, Rhinelander, Superior, La Crosse, Milwaukee and Madison.